Rosenthal v. Giustiniani

64 A.D.2d 697, 407 N.Y.S.2d 561, 1978 N.Y. App. Div. LEXIS 12528

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 31, 1978
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the Appeals Board of the Department of Motor Vehicles, which affirmed a determination made after an administrative hearing adjudicating petitioner guilty of speeding and imposing penalties. Petition granted; determination annulled, on the law, without costs or disbursements, suspension vacated and fine ordered remitted. Petitioner was convicted of traveling at a rate of 72 miles per hour in a 50-mile per hour zone. We cannot confirm the determination due to the errors committed at the hearing and because of the lack of clear and convincing evidence of guilt. At the end of the hearing, the referee stated that the petitioner did not prove his innocence beyond a reasonable doubt. Not only was the burden of proof shifted by the referee, but an excessive standard was applied. Under the circumstances herein, the determination must be annulled and the penalties imposed vacated. Titone, J. P., Suozzi, Shapiro and Cohalan, JJ., concur.